In a recent paper, “How Facts Make Law,” I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I call rational determination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains.

Private law is generally formulated in terms of right–duty relations, and accordingly, private-law claims are understood to arise from breaches of duty, or wrongs. Some claims are not easy to explain on this basis because the claim arises from an act that the defendant was justified in doing. The violation/infringement distinction seems to offer an explanation of such claims, but it is argued that the explanation is illusory. Claims of this sort are best understood as based not on a primary right–duty relation at all but on a “primary liability” or “right–liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

This essay consolidates some fragments of the contemporary theory of expressive freedoms, bringing together scattered conceptual distinctions (e.g., hurting and harming, tolerating and legitimating) and moves (e.g., the need to rectify hateful speech and to constrain harmful actions legally) into an account that is sensitive to the needs of abused groups but faithful to the libertarian tradition associated with Mill's harm principle. Accepting this principle as the fundamental condition warranting legal control of action, we explore legislative responsibilities for protecting expressive freedoms through three additional presumptions. The chief of them is an expectation of epistemic rationality that limits occasions of harm requiring legal action. A presumption of enablement over punishment shows that criminal sanctions for hateful speech are almost never appropriate. A presumption of multiple responsibilities accepts that social sanctions may be appropriate where political coercion is not.

[Originally published in 11 LEGAL THEORY 363–385 (2005)]